RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02020

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

His general (under honorable conditions) discharge be upgraded to honorable.

His discharge be changed to a medical disability.

His reenlistment code be changed. 

APPLICANT’S CONTENTIONS

He made some bad choices while in the military.  However, since he’s been out the military, he leads a Christian life, is married with three children and has never been in trouble again.  He also believes he was disabled at the time of discharge.

In support of his request, the applicant provides medical documentation. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).

On 5 Nov 81, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFM 39-12, Administrative Separation of Airmen.  The specific reason for the action was misconduct because of civil court disposition on or about 28 Oct 81, in which the applicant was convicted of simple possession of a controlled substance, fined $1,000.00 sentenced to six months in jail, and placed on probation for one year. 

On 4 Dec 81, the Staff Judge Advocate found the discharge action legally sufficient.

On 11 Jan 82, the discharge authority directed the applicant be discharged for misconduct, with a general (under honorable conditions) service characterization.  Probation and rehabilitation was considered, but not offered.

On 19 Jan 82, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct – Civil Court Disposition” and he was credited with one year, three months, and four days of total active service.

For more information, see the excerpt of the applicant’s record at Exhibit B.

POST-SERVICE INFORMATION

On 10 Aug 21, the Board sent the applicant a request for post-service information (Exhibit C), including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

APPLICABLE AUTHORITY/GUIDANCE

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

On 25 Aug 17, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 10 Aug 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).
AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 
Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, and rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the applicant’s request for the desired changes to his record.    There are records reflecting he had received an evaluation and participated in the drug rehabilitation program presumably following his drug possession during service; however, these records were not detailed enough to include any pertinent information such as when, how, or why the applicant was in possession of a controlled substance.  There were no records reporting he used these substances as well.  Besides the limited information, there are no records reporting he had any mental health conditions to include post-traumatic stress disorder (PTSD), the condition he marked on his application to the BCMR.  He received a separation physical and denied having any mental health issues to include depression, anxiety/excessive worry, and sleep problems.  He never received a mental disorder diagnosis or mental health treatment (besides drug rehabilitation) in service, was never placed on a duty limiting conditions profile for a mental health condition, was never deemed not worldwide qualified due to his mental health condition, and no statements from his commander or chain of command of any mental health conditions that may interfere with his ability to perform his military duties.  There are no records the applicant received any mental health treatment post service, and there are also no records he was given a diagnosis of PTSD or any other mental disorders or conditions by any duly qualified mental health professional post service. 

The complete advisory opinion is at Exhibit D.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DP2SSM recommends denying a change to the applicant’s RE code.  The applicant was involuntarily discharged under AFM 39-12 with a narrative reason for separation of Misconduct – Civil Court Disposition and received an RE code 2B based on his involuntary discharge with a general character of service.  There is no evidence of an error or injustice. 

The complete advisory opinion is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

The AFRBA Medical Advisor recommends denying the applicant’s request for a medical discharge.  The military Disability Evaluation System, established to maintain a fit and vital fighting force, can by law, under Title 10, U.S.C., only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future progression of disease or injury. No evidence was presented to indicate that at the time of his separation from the Air Force any of his medical conditions precluded the applicant from reasonably performing the duties of his office, grade, rank, or rating. Specifically, there was no evidence that the issues associated with any condition, duty-related or otherwise, were as severe as to independently disqualify him from worldwide duty or warrant a separate basis for referral into the Medical Evaluation Board process. 

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent a copy of the advisory opinions to the applicant on 2 Aug 21 for comment (Exhibit G) but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitation period established by 10 U.S.C. § 1552(b).

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of post-service information and criminal history, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-02020 in Executive Session on 18 Aug 21 and 3 Sep 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 25 Apr 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal        
                  Consideration/Clemency Guidance), dated 10 Aug 21.
Exhibit D: Advisory Opinion, AFRBA Psychological Advisor, dated 6 Jul 21.
Exhibit E:	Advisory Opinion, AFPC/DP2SSM dated, 28 Jul 21.
Exhibit F:	Advisory Opinion, AFRBA Medical Advisor, dated 30 Jul 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 2 Aug 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.